In Re the Termination of the Parent-Child Relationship of K.H. and J.H. (Minor Children) T.B. (Mother) and J.H. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jul 31 2018, 7:41 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE (FATHER) Curtis T. Hill, Jr. Jennifer A. Joas Attorney General of Indiana Madison, Indiana Abigail R. Recker ATTORNEY FOR APPELLANT Deputy Attorney General (MOTHER) Indianapolis, Indiana Leanna Weissmann Lawrenceburg, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Termination of the July 31, 2018 Parent-Child Relationship of Court of Appeals Case No. K.H. and J.H. (Minor Children); 17A-JT-3047 T.B. (Mother) and J.H. (Father), Appeal from the Ripley Circuit Court Appellants-Respondents, The Honorable Ryan J. King, v. Judge Trial Court Cause No. The Indiana Department of 69C01-1706-JT-12 69C01-1706-JT-13 Child Services, Appellee-Plaintiff.

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Pyle, Judge.

Statement of the Case [1] Appellants, T.B. (“Mother”) and K.H. (“Father”) (collectively, the “Parents”),

appeal the termination of the parent-child relationships with their children,

(“K.H.” and “J.H.”) (collectively, the “Children”). Both Parents claim that

there is insufficient evidence to support the terminations. Specifically, Mother

argues that the Indiana Department of Child Services (“DCS”) failed to prove

by clear and convincing evidence that: (1) there is a reasonable probability that

the conditions that resulted in the Children’s removal or the reasons for

placement outside the home will not be remedied; (2) a continuation of the

parent-child relationship poses a threat to the Children’s well-being; and (3)

termination of the parent-child relationships is in the Children’s best interests.

Father argues only that there is insufficient evidence that termination of his

parental rights is in the Children’s best interests. Concluding that there is

sufficient evidence to support the termination of the parent-child relationships,

we affirm the trial court’s judgment. [2] We affirm.

Issue The sole issue for our review is whether there is sufficient evidence to support the termination of the parent-child relationships.

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Facts [3] Parents have two children: K.H., born August 20, 2012, and J.H., born

September 17, 2014. Prior to the trial court’s termination of the Parents’

relationships with K.H. and J.H., Parents had a history of involvement with

DCS, including two prior Child In Need of Services (“CHINS”) adjudications. [4] The first CHINS proceeding, which involved then-one-year-old K.H., was filed

on December 16, 2013. DCS alleged that Parents’ had drugs and drug

paraphernalia in the home with K.H. present. On January 8, 2014, K.H. was

adjudicated a CHINS. DCS subsequently provided Parents multiple services,

including supervised visitation, random drug screens, and home-based case

management. After Parents complied with the case plan, the court terminated

its jurisdiction over the CHINS case on July 29, 2014. [5] Less than three months later, on October 16, 2014, DCS filed another CHINS

petition after J.H.’s meconium tested positive for amphetamine and

methamphetamine at birth. Both K.H. and J.H. were adjudicated CHINS and

placed with a foster mother (“Foster Mother”) upon their removal from

Parents. During this second CHINS case, DCS again provided Parents with

multiple services, including substance abuse counseling, random drug screens,

and visitation. Parents participated in services, and on September 28, 2015, the

court terminated its jurisdiction over the CHINS case, and the Children

returned to the Parents.

Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018 Page 3 of 14 [6] Shortly thereafter, on July 14, 2016, DCS received a report alleging drug use

and domestic violence in Parents’ home. DCS Family Case Manager Tammy

Clark (“FCM Clark”) visited Parents’ home multiple times to investigate, but

she was unable to locate the family there. On July 18, 2016, FCM Clark was

finally able to make contact with the family. DCS then located the Children in

Ohio at the home of Mother’s aunt. [7] FCM Clark testified at the termination hearing that when she discovered K.H.,

he had an “oozing burn” that had not been medically treated. (Tr. at 7). FCM

Clark sought medical treatment for K.H. at Indiana University Medical Center,

where DCS Family Case Manager Michelle Huber (“FCM Huber”), after

interviewing K.H. and assessing the injury, determined that the injury was the

result of abuse or neglect. Father later admitted, first to his substance abuse

counselor and again during his testimony at the termination hearing, that

K.H.’s arm had been burned with Father’s methamphetamine pipe [8] On July 18, 2016, Children were again placed with Foster Mother. On July 22,

2016, Parents were arrested for maintaining a common nuisance, a Level 6

felony. At the time of their arrests, both Parents tested positive for

amphetamine and methamphetamine. Father also tested positive for THC.

When FCM Clark visited Mother on July 23, 3016, she “was very clearly

impaired,” rocking back and forth, picking at a sore on her lip, and unable to

follow the conversation. (Tr. 9). On August 1, 2016, a probation violation was

filed against Mother for her positive drug screens. Soon after, Parents both

pleaded guilty to neglect of a dependent resulting in bodily injury, a Level 5

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felony. A no-contact order was issued prohibiting Parents from having contact

with K.H. until two years following their release from incarceration. [9] On September 19, 2016, the court held a fact-finding hearing, during which

both Parents admitted to drug use and domestic violence in the home. The

court subsequently adjudicated the Children as CHINS, and the Children have

remained with Foster Mother until present. [10] On September 20, 2016, Mother pleaded guilty to maintaining a common

nuisance, a Level 6 felony, and was sentenced to 450 days with 122 days

executed. For violating her probation, Mother was also ordered to serve 730

days of her previously suspended sentence. Father also pleaded guilty to

maintaining a common nuisance, a Level 6 felony, and was sentenced to 420

days in prison with 120 days executed and 300 days suspended. Father also

received two additional sentences: (1) 420 days in prison for possession of

methamphetamine, a Level 6 felony; and (2) 180 days in the Decatur County

Jail for possession of marijuana, a Class B misdemeanor, both which were

suspended and to be served on probation. [11] Also in September 2016, Father pleaded guilty to dealing in marijuana, a Level

6 felony, and was sentenced to 910 days, with 545 days suspended and 339 days

served on Ripley County Jail Work Release. [12] While incarcerated, Father participated in the Fatherhood Engagement

Program, had supervised visits with the Children, and completed a substance

abuse assessment with Extra Special Parents substance abuse counselor Monica

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Berry (“Berry”). During the assessment, Father admitted a history of

methamphetamine use and that K.H. was burned by Father’s

methamphetamine pipe. Berry recommended Father complete an intensive

outpatient program. On March 17, 2017, Father bonded out of jail, and six

days later, on March 23, 2017, he tested positive for amphetamine,

methamphetamine, and tramadol. As a result of this positive drug screen,

Father’s bond was revoked, and he was reincarcerated at Ripley County Jail. [13] Mother has remained incarcerated through the pendency of the CHINS case

and termination of parental rights hearing. Her estimated earliest release date is

August 26, 2019, after which she will be on probation for two years. During

her incarceration, she completed a Mother’s Against Methamphetamine

program and additional classes. She has had video and phone contact with the

Children. Mother also completed a substance abuse assessment with Berry,

during which Mother admitted to a history of alcohol and drug use, as well as

domestic violence in the home when she and Father were under the influence of

drugs. Mother also admitted to drug and alcohol use during her pregnancy

with J.H. Berry recommended Mother complete an inpatient substance abuse

treatment program and a mental health evaluation. [14] On September 27, 2017, Mother pleaded guilty to a felony neglect of a

dependent charge and was sentenced to five years in prison with two years

suspended to probation. On October 2, 2017, Father also pleaded guilty to

felony neglect of a dependent and was sentenced to five years in prison with

three years actually served and two years suspended to probation. Parents were

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both ordered to have no contact with K.H. until at least two years post-

incarceration. [15] On October 23, 2017, the trial court held a fact-finding hearing regarding

termination of the Parents’ parental rights. The Court heard testimony from

Parents, Foster Mother, multiple DCS employees, including FCM Clark and

FCM Huber, as well as other service providers, including Berry and Court

Appointed Special Advocate Becky Stein (“CASA Stein”). At the hearing,

Huber and Stein both opined that termination of the Parents’ parental rights

was in the Children’s best interests. Mother further testified that she wanted

Children to be adopted by Foster Mother and believed that the adoption would

be in the Children’s best interests. Father testified that he did not want his

parental rights terminated, but he agreed that the Children “need some sort of

permanency[.]” [16] On November 3, 2017, the trial court issued its order for involuntary

termination of the parent-child relationships between Parents and Children.

Parents now appeal.

Decision [17] The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment to the United States Constitution. In

re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans denied.

However, a trial court must subordinate the interests of the parents to those of

the child when evaluating the circumstances surrounding a termination. Id. at

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1188. Termination of the parent-child relationship is proper where a child’s

emotional and physical development is threatened. Id. Although the right to

raise one’s own child should not be terminated solely because there is a better

home available for the child, parental rights may be terminated when a parent is

unable or unwilling to meet his or her parental responsibilities. Id. [18] Before an involuntary termination of parental rights may occur, DCS is

required to allege and prove, among other things:

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.

(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of the child.

[19] IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

clear and convincing evidence. K.T.K. v. Ind. Dep’t. Servs., 989 N.E.2d 1225,

1230 (Ind. 2013). [20] When reviewing the termination of parental rights, this Court will not reweigh

the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

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628 (Ind. 2016). First, we determine whether the evidence supports the

findings, and second, we determine whether the findings support the judgment.

Id. We will set aside a trial court’s judgment terminating a parent-child

relationship only if it is clearly erroneous. Id. Findings are clearly erroneous

when the record contains no facts or inferences to be drawn therefrom that

support them. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). A judgment

is clearly erroneous if the findings do not support the trial court’s conclusions or

the conclusions do not support the judgment. Id. [21] Mother challenges the trial court’s finding that Parents’ “continued pattern of

drug use is extremely unlikely to stop.” (Mother’s Br. 20). She also challenges

the trial court’s conclusions that DCS met its burden of proof for both

subsections (B) and (C) of INDIANA CODE § 31-35-2-4(b)(2). Father challenges

only the trial court’s conclusion that DCS met its burden of proof for subsection

(C). We will address each subsection in turn.

A. Reasonable Probability Conditions Will Not Be Remedied

[22] First, Mother argues that DCS did not meet its burden under INDIANA CODE §

31-35-2-4(b)(2)(B) because it failed to prove by clear and convincing evidence

that: (1) there is a reasonable probability that the conditions that resulted in the

Children’s removal or the reasons for placement outside the home will not be

remedied; and (2) a continuation of the parent-child relationship poses a threat

to the Children’s well-being. However, we note that subsection (B) is written in

the disjunctive. Accordingly, DCS is required to establish by clear and

convincing evidence only one of the three requirements of subsection (B). In re

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A.K., 924 N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only

whether there is a reasonable probability that the conditions that resulted in the

children’s removal or the reasons for their placement outside the home will not

be remedied. [23] In determining whether the conditions that resulted in a child’s removal or

placement outside the home will not be remedied, trial courts engage in a two-

step analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). The first step is to

identify the conditions that led to removal or placement outside the home and

then determine whether there is a reasonable probability that those conditions

will not be remedied. Id. The second step requires trial courts to judge a

parent’s fitness at the time of the termination proceeding, taking into

consideration evidence of changed conditions and balancing any recent

improvements against habitual patterns of conduct to determine whether there

is a substantial probability of future neglect or deprivation. Id. Habitual

conduct may include parents’ prior criminal history, drug and alcohol abuse,

history of neglect, failure to provide support, and a lack of adequate housing

and employment. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157

(Ind. Ct. App. 2013), trans. denied. The trial court may also consider services

offered to the parent by DCS and the parent’s response to those services as

evidence of whether conditions will be remedied. Id. Requiring trial courts to

give due regard to changed conditions does not preclude them from finding that

a parent’s past behavior is the best predictor of her future behavior. Id.

Court of Appeals of Indiana | Memorandum Decision 17A-JT-3047 | July 31, 2018 Page 10 of 14 [24] Here, our review of the evidence reveals that the Children were removed most

recently from Mother and Father on July 18, 2016, due to suspected drug

abuse, domestic violence, and child neglect. At that time, FCM Clark

discovered K.H. with an untreated burn on his arm from Father’s pipe used for

smoking methamphetamine. Parents subsequently pleaded guilty to neglect of

a dependent resulting in bodily injury. In concluding that the conditions

leading to Children’ removal—namely, Parents’ continued drug abuse and

neglect of the Children—would probably not be remedied, the trial court

considered Mother’s continuous pattern of substance abuse over several years.

The trial court noted that Mother has had multiple criminal convictions,

probation violations, and three CHINS cases. The court also noted that despite

services offered to her by DCS, Mother was unable to remain sober longer than

four weeks following DCS’s closing of the second CHINS proceeding, and she

had a positive drug screen at the time of her arrest, indicating

methamphetamine and amphetamine use. [25] The trial court also considered evidence bearing on Mother’s present fitness,

including her continuous and current incarceration until August 2019, her

violation of the no-contact order currently in place between her and K.H. until

August 2021, and that her most recent stretch of sobriety overlaps entirely with

her incarceration. See In re T.K., 989 N.E.2d 1225, 1234 (Ind. 2013) (finding it

within a trial court’s discretion to ascribe less predictive value to a mother’s

sobriety while in prison “where she would not have had access to illegal

substances”). Mother argues in her brief that the trial court relied too heavily

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upon her pattern of drug addiction and neglect, rather than Mother’s recent

sobriety while incarcerated. Specifically, she contends that “[by] opin[ing]

Mother would continue the same pattern of drug addiction which first led to the

children’s removal ... the court failed to consider evidence from the Record that

Mother has changed.” (Mother’s Br. at 20). However, Mother’s argument

simply invites this Court to reweigh the evidence, which it will not do. As

discussed above, the record contains facts or inferences that support the trial

court’s finding regarding Mother’s likelihood of continued drug use, and

therefore Mother has not met her burden of showing that the court’s finding is

clearly erroneous. The trial court’s finding is supported by the evidence, and in

turn, that finding directly supports the trial court’s conclusion that there is a

reasonable probability that the conditions leading to the Children’s removal will

not be remedied. Accordingly, we find no error.

B. Best Interests of the Children

[26] Finally, Mother and Father both argue that there is insufficient evidence that

the termination was in Children’s best interests, as is required by INDIANA

CODE § 31-35-2-4(b)(2)(C). In determining whether termination of parental

rights is in the best interests of a child, the trial court is required to look at the

totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),

trans. denied. In so doing, the court must subordinate the interests of the parents

to those of the child involved. Id. Termination of the parent-child relationship

is proper where the child’s emotional and physical development is threatened.

In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘A parent’s

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historical inability to provide adequate housing, stability and supervision

coupled with a current inability to provide the same will support a finding that

continuation of the parent-child relationship is contrary to the child’s best

interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

denied, superseded by rule on other grounds). Further, the testimony of the service

providers may support a finding that termination is in the child’s best interests.

McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

Ct. App. 2003). [27] Neither Mother nor Father challenges any of the trial courts’ findings pertaining

to the best interests of the children. Rather, they both challenge whether the

findings support the trial court’s conclusions that termination was in the

Children’s best interests, arguing that guardianship should have been pursued

instead. Here, our review of the trial court’s findings reveals that Parents both

have a long history of criminal conduct and drug use, resulting in their current

incarceration, that Parents have historically been unable to provide stability and

supervision for the Children and were unable to provide the same at the time of

the termination hearing, that Mother admitted at the termination hearing that

adoption by Foster Mother would be in the Children’s best interests, and that

Father agreed that the Children “need some sort of permanency[.]” (Tr. at

110). In addition, CASA Stein and FCM Huber both opined in their hearing

testimonies that DCS’s permanency plan, namely adoption by Foster Parents,

was in the Children’s best interests. These testimonies, as well as the other

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evidence previously discussed, all support the trial court’s conclusion that

termination was in the Children’s best interests. [28] We reverse a termination of parental rights “only upon a showing of ‘clear

error’—that which leaves us with a definite and firm conviction that a mistake

has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

1235 (Ind. 1992). We find no such error here and therefore affirm the trial

court. [29] Affirmed.

Vaidik, C.J., and Barnes, Sr.J., concur.

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